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[Federal Register Volume 72, Number 13 (Monday, January 22, 2007)]
[Rules and Regulations]
[Pages 2631-2633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-730]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Chapter 2

RIN 0750-AF56

Defense Federal Acquisition Regulation Supplement; Emergency 
Acquisitions (DFARS Case 2006-D036)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD has issued an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to provide a single reference 
to DoD-unique acquisition flexibilities that may be used to facilitate 
and expedite acquisitions of supplies and services during emergency 
situations.

DATES: Effective date: January 22, 2007.
    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before March 23, 2007, to be 
considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2006-D036, 
using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include DFARS Case 2006-D036 in the 
subject line of the message.
     Fax: (703) 602-0350.
     Mail: Defense Acquisition Regulations System, Attn: Mr. 
Gary Delaney, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense 
Pentagon, Washington, DC 20301-3062.
    [cir] Hand Delivery/Courier: Defense Acquisition Regulations 
System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
22202-3402.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Mr. Gary Delaney, (703) 602-0131.

SUPPLEMENTARY INFORMATION: 

A. Background

    Item II of Federal Acquisition Circular 2005-11, published at 71 FR 
38247 on July 5, 2006, added Part 18 to the Federal Acquisition 
Regulation (FAR). FAR Part 18 provides a single reference to 
Governmentwide acquisition flexibilities that may be used to facilitate 
and expedite acquisitions of supplies and services during emergency 
situations. This interim DFARS rule adds a new Part 218 to provide a 
single reference to the additional acquisition flexibilities available 
to DoD.
    Consistent with the FAR, the flexibilities in DFARS Part 218 are 
divided into two subparts. The first subpart, entitled ``Available 
Acquisition Flexibilities'' identifies the DoD flexibilities that may 
be used anytime and do not require an emergency declaration. The second 
subpart, entitled ``Emergency Acquisition Flexibilities'' identifies 
the DoD flexibilities that may be used only after an emergency 
declaration or designation has been made by the appropriate official. 
The second subpart is further divided into three sections: Contingency 
operation; Defense or recovery from certain attacks; and Incidents of 
national significance, emergency declaration, or major disaster 
declaration.
    DoD would like to hear the views of interested parties on the 
sufficiency of these provisions. In particular, DoD is interested in 
receiving input as to whether the provisions sufficiently clarify the 
existing DFARS flexibilities that can be used in emergency situations 
or whether more detailed, comprehensive coverage is needed.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact 
on a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule is 
a compilation of existing authorities, and makes no change to DoD 
contracting policy. Therefore, DoD has not performed an initial 
regulatory flexibility analysis. DoD invites comments from small 
businesses and other interested parties. DoD also will consider 
comments from small entities concerning the affected DFARS subparts in 
accordance with 5 U.S.C. 610. Such comments should be submitted 
separately and should cite DFARS Case 2006-D036.

[[Page 2632]]

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply, because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

D. Determination to Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense that urgent and compelling reasons exist to publish an 
interim rule prior to affording the public an opportunity to comment. 
This action is necessary to improve DoD's ability to expedite 
acquisitions of supplies and services during emergency situations. 
Comments received in response to this interim rule will be considered 
in the formation of the final rule.

List of Subjects in 48 CFR Chapter 2

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR Chapter 2 is amended as follows:
0
1. The authority citation for 48 CFR Chapter 2 continues to read as 
follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

0
2. 48 CFR part 218 is added to read as follows:

PART 218--EMERGENCY ACQUISITIONS

Subpart 218.1--Available Acquisition Flexibilities
Sec.
218.170 Additional acquisition flexibilities.
Subpart 218.2--Emergency Acquisition Flexibilities
218.201 Contingency operation.
218.202 Defense or recovery from certain attacks.
218.203 Incidents of national significance, emergency declaration, 
or major disaster declaration.

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

Subpart 218.1--Available Acquisition Flexibilities

218.170  Additional acquisition flexibilities.

    Additional acquisition flexibilities available to DoD are as 
follows:
    (a) Circumstances permitting other than full and open competition. 
Use of the authority at FAR 6.302-2, Unusual and compelling urgency, 
may be appropriate under certain circumstances. See PGI 206.302-2.
    (b) Use of advance Military Interdepartmental Purchase Request 
(MIPR). For urgent requirements, the advance MIPR may be transmitted 
electronically. See PGI 208.7004-3.
    (c) Use of the Governmentwide commercial purchase card. 
Governmentwide commercial purchase cards do not have to be used for 
purchases valued at or below the micro-purchase threshold if the place 
of performance is entirely outside the United States. See 
213.270(c)(1).
    (d) Master agreement for repair and alteration of vessels. The 
contracting officer, without soliciting offers, may issue a written job 
order for emergency work to a contractor that has previously executed a 
master agreement, when delay would endanger a vessel, its cargo or 
stores, or when military necessity requires immediate work on a vessel. 
See 217.7103-4, 252.217-7010, and PGI 217.7103-4.
    (e) Spare parts breakout program. An urgent immediate buy need not 
be delayed if an evaluation of the additional information cannot be 
completed in time to meet the required delivery date. See PGI 217.7506, 
paragraph 1-105(e).
    (f) Storage and disposal of toxic and hazardous materials. Under 
certain emergency situations, exceptions apply with regard to the 
prohibition on storage or disposal of non-DoD-owned toxic or hazardous 
materials on DoD installations. See 223.7102(a)(3) and (7).
    (g) Authorization Acts, Appropriations Acts, and other statutory 
restrictions on foreign acquisition. Acquisitions in the following 
categories are not subject to the restrictions of 225.7002, 
Restrictions on food, clothing, fabrics, specialty metals, and hand or 
measuring tools: (1) Acquisitions at or below the simplified 
acquisition threshold; (2) Acquisitions outside the United States in 
support of combat operations; (3) Acquisitions of perishable foods by 
or for activities located outside the United States for personnel of 
those activities; (4) Acquisitions of food, specialty metals, or hand 
or measuring tools in support of contingency operations, or for which 
the use of other than competitive procedures has been approved on the 
basis of unusual and compelling urgency in accordance with FAR 6.302-2; 
(5) Emergency acquisitions by activities located outside the United 
States for personnel of those activities; and (6) Acquisitions by 
vessels in foreign waters. See 225.7002-2.
    (h) Rights in technical data. The agency head may notify a person 
asserting a restriction that urgent or compelling circumstances (e.g., 
emergency repair or overhaul) do not permit the Government to continue 
to respect the asserted restriction. See 227.7102-2; 227.7103-5; 
227.7103-13; 227.7104; 227.7203-13; 252.227-7013; 252.227-7014; 
252.227-7015; 252.227-7018; and 252.227-7037.
    (i) Tax exemption in Spain. If copies of a contract are not 
available and duty-free import of equipment or materials is urgent, the 
contracting officer may send the Joint United States Military Group 
copies of the Letter of Intent or a similar document indicating the 
pending award. See PGI 229.7001.
    (j) Electronic submission and processing of payment requests. 
Contractors do not have to submit payment requests in electronic form 
for awards made to foreign vendors for work performed outside the 
United States or for purchases to support unusual or compelling needs 
of the type described in FAR 6.302-2. See 232.7002(a)(2) and (5).
    (k) Mortuary services. In an epidemic or other emergency, the 
contracting activity may obtain services beyond the capacity of the 
contractor's facilities from other sources. See 237.7003(b) and 
252.237-7003.

Subpart 218.2--Emergency Acquisition Flexibilities

218.201  Contingency operation.

    (1) Selection, appointment, and termination of appointment. 
Contracting officer qualification requirements pertaining to a 
baccalaureate degree and 24 semester credit hours of business related 
courses do not apply to DoD employees or members of the armed forces 
who are in a contingency contracting force. See 201.603-2(2).
    (2) Policy for unique item identification. Contractors will not be 
required to provide DoD unique item identification if the items, as 
determined by the head of the agency, are to be used to support a 
contingency operation. See 211.274-2(b).
    (3) Use of the Governmentwide commercial purchase card. 
Governmentwide commercial purchase cards do not have to be used for 
purchases valued at or below the micro-purchase threshold if the 
purchase or payment is for an overseas transaction by a contracting 
officer in support of a contingency operation, or for training 
exercises in preparation for overseas contingency, humanitarian, or 
peacekeeping operations. See 213.270(c)(3) and (5).
    (4) Governmentwide commercial purchase card. A contracting office 
supporting a contingency operation or a humanitarian or peacekeeping 
operation

[[Page 2633]]

may use the Governmentwide commercial purchase card to make a purchase 
that exceeds the micro-purchase threshold but does not exceed the 
simplified acquisition threshold if certain conditions are met. See 
213.301(3).
    (5) Imprest funds and third party drafts. Imprest funds are 
authorized for use without further approval for overseas transactions 
at or below the micro-purchase threshold in support of a contingency 
operation or a humanitarian or peacekeeping operation. See 213.305-
3(d)(iii)(A).
    (6) Standard Form (SF) 44, Purchase Order-Invoice-Voucher. SF 44s 
may be used for purchases not exceeding the simplified acquisition 
threshold for overseas transactions by contracting officers in support 
of a contingency operation or a humanitarian or peacekeeping operation. 
See 213.306(a)(1)(B).
    (7) Undefinitized contract actions. The head of the agency may 
waive certain limitations for undefinitized contract actions if the 
head of the agency determines that the waiver is necessary to support a 
contingency operation or a humanitarian or peacekeeping operation. See 
217.7404-5(b).
    (8) Prohibited sources. DoD personnel are authorized to make 
emergency acquisitions in direct support of U.S. or allied forces 
deployed in military contingency, humanitarian, or peacekeeping 
operations in a country or region subject to economic sanctions 
administered by the Department of the Treasury, Office of Foreign 
Assets Control. See 225.701-70.
    (9) Authorization Acts, Appropriations Acts, and other statutory 
restrictions on foreign acquisition. Acquisitions in the following 
categories are not subject to the restrictions of 225.7002, 
Restrictions on food, clothing, fabrics, specialty metals, and hand or 
measuring tools: (1) Acquisitions at or below the simplified 
acquisition threshold; (2) Acquisitions outside the United States in 
support of combat operations; (3) Acquisitions of perishable foods by 
or for activities located outside the United States for personnel of 
those activities; (4) Acquisitions of food, specialty metals, or hand 
or measuring tools in support of contingency operations, or for which 
the use of other than competitive procedures has been approved on the 
basis of unusual and compelling urgency in accordance with FAR 6.302-2; 
(5) Emergency acquisitions by activities located outside the United 
States for personnel of those activities; and (6) Acquisitions by 
vessels in foreign waters. See 225.7002-2.
    (10) Electronic submission and processing of payment requests. 
Contractors do not have to submit payment requests in electronic form 
for contracts awarded by deployed contracting officers in the course of 
military operations, including contingency operations or humanitarian 
or peacekeeping operations. See 232.7002(a)(4).

218.202  Defense or recovery from certain attacks.

    Policy for unique item identification. Contractors will not be 
required to provide DoD unique item identification if the items, as 
determined by the head of the agency, are to be used to facilitate 
defense against or recovery from nuclear, biological, chemical, or 
radiological attack. See 211.274-2(b).

218.203  Incidents of national significance, emergency declaration, or 
major disaster declaration.

    (1) Establishing or maintaining alternative sources. PGI contains a 
sample format for Determination and Findings citing the authority of 
FAR 6.202(a), regarding exclusion of a particular source in order to 
establish or maintain an alternative source or sources. Alternate 2 of 
the sample format addresses having a supplier available for furnishing 
supplies or services in case of a national emergency. See PGI 206.202.
    (2) Electronic submission and processing of payment requests. 
Contractors do not have to submit payment requests in electronic form 
for contracts awarded by contracting officers in the conduct of 
emergency operations, such as responses to natural disasters or 
national or civil emergencies. See 232.7002(a)(4).

[FR Doc. E7-730 Filed 1-19-07; 8:45 am]
BILLING CODE 5001-08-P
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